Free Response to Motion - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

Document 218

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS _________________________________________ ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________) CAROL AND ROBERT TESTWUIDE, et al.,

No.: 01-201L (Honorable Victor J. Wolski)

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO STRIKE THE JOINT TRIAL EXHIBIT LIST FILED BY PLAINTIFFS ON OCTOBER 2, 2006 The Joint Exhibit List, filed by Plaintiffs on October 2, 2006, was sent to the Government on September 12, 2006. Counsel for Plaintiffs stated that they would be filing the same Joint Exhibit List with the Court and explained that the listed exhibits were identified as joint because each had "None" or Blank in the Plaintiff's and Defendant's objection fields. The parties had been exchanging exhibits, exhibit numbers, supplemental exhibit lists, documents, images and objections from August 9, 2006 as reflected on the timeline of these events (Plaintiffs' Exhibit D to Plaintiffs' Joint Trial Exhibits List filed on October 2, 2006). The Government raised no issues regarding the Joint Exhibit List sent to them on September 12, 2006, either by email, letter, phone call or supplemental or amended objections. It was this Court's Order of September 21, 2006, which provided in part that a witness need not be on the stand in order to receive a joint exhibit into evidence, which caused the Government to believe that it could and should revisit the joint exhibit list. It was not until seven days later and at 8:15 p.m. on the day before

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exhibit lists were to be filed, that the Government produced a 53 page spreadsheet raising entirely new objections to the joint exhibits. The Government's allegation in its present Motion "that Plaintiffs ignored Defendant's unsuccessful efforts to work with Plaintiffs to minimize evidentiary objections to exhibits" is a mystery. Plaintiffs have two inches of documents comprised of emails, letters, lists, comments and objections that make up the exchanges between the parties between August 9 and September 12. The Government would have the Court believe that this never happened and that Plaintiffs somehow became obdurate after the Court's Order of September 21. The argument is specious. In its Motion to Strike, the Government asserts that its objections to the September 11 joint exhibit list are not untimely because "any delay was caused by Plaintiffs . . . the Proposed Joint Exhibit List plaintiffs sent on September 12, 2006 contained numerous documents that were not on both parties' exhibit lists". This argument ignores the fact that every document on the Joint Exhibit List was on either Plaintiffs' or Defendant's exhibit list and had received no objection by either side, as was set out in Plaintiffs' September 12, 2006 email, to which the Government never objected or even responded. For that same reason the Government's statement that "in many instances, it was exceedingly difficult, if not impossible, for defendant to locate and review these documents to see if they were appropriately designated as joint exhibits" is ludicrous. There were numerous communications between the parties between August 9 and September 12, 2006 in attempts to synchronize both parties' lists, including requests for and forwarding of documents that either party had not already been provided with or

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could not locate. The Government never requested from Plaintiffs any of the documents listed on the joint exhibit list filed by Plaintiffs. The format and contents of the list from the Government on September 27 (and October 2) was the list sent by Plaintiffs on September 12, but with an additional column added for the Government's "new" objections. In its list the Government objected to thirteen documents on the grounds that "We have not been provided documents with these Bates No. and must object until we review them." Plaintiffs have extracted these "Not Provided" objections and placed them in Exhibit A to this memo. Every single document in Exhibit A had been provided to Defendant and had been in its hands before the initial exchange of objections on August 16. Seven of the documents are deposition exhibits in the case. Two are Defendant's own trial exhibits nominated by Defendant in August (and later withdrawn). (See Comments re Objections on Exhibit A). The Government has consistently waited until the 12th hour and even beyond deadlines to file documents in this case. The "new" objections sent to Plaintiffs on September 27 were forwarded under an email (Exhibit B) which stated: We have completed our review of your proposed JX list in light of the court's order regarding the presentation of JXs at trial and our objections to specific documents are attached. (emphasis added). As it turns out, in the three days between Friday, September 28 and Monday October 2 the Government came up with yet additional objections. The list filed on October 2 has 21 exhibits to which the Government's objections changed in those three days. Plaintiffs have extracted these "changed" objections and placed them in Exhibit C to this memorandum. On Exhibit C the Government's September 27 objection is in the sixth column while its October 2 objection is in the seventh. The Government never advised

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Plaintiffs that they should consider the second document an entirely new list of objections to contend with. In addition, the Government filed an Amended Defendant's Exhibit List at 9:15 p.m. October 2, 2006. The result of the Government's extraordinary maneuver is to take a joint exhibit list which contained 154 exhibits to which no one objected and turn it into a list of 51 exhibits. Having done that, the Government then castigates Plaintiffs for ignoring "defendant's unsuccessful efforts to work with plaintiffs to minimize evidentiary objections to exhibits so as to improve the efficiency of trial ...". (Defendant's memo, p. 1). This is an unacceptable litigation strategy.

Dated: October 4, 2006

Respectfully submitted,

/s/ Jack E. Ferrebee __ Jack E. Ferrebee Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] Counsel of Record for Plaintiffs Of Counsel: Kieron F. Quinn Martin E. Wolf Quinn, Gordon & Wolf, Chtd. 102 W. Pennsylvania Avenue Suite 402 Towson, Maryland 21204 (410) 825-2300 [email protected] [email protected] Charles R. Hofheimer Kristen D. Hofheimer

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Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] [email protected] Thomas Shuttleworth Stephen C. Swain Lawrence Woodward Charles B. Lustig Shuttleworth, Ruloff, Giordano & Swain 4525 South Blvd., Suite 300 Virginia Beach, Virginia 23452 (757) 671-6000 [email protected] [email protected] [email protected] [email protected]

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10/03/06

PLAINTIFFS' COMMENTS REGARDING DEFENDANT'S 09.27.06 AND 10.02.06 "NOT PROVIDED" OBJECTIONS TO JOINT EXHIBITS

Joint Exhibit No.
1 JX065

DF Trial Exh No.

DF PL Trial 08.16.06 Exhibit No Objection
PT557 None

DF 09.27.06 and 10.02.06 Objection
We have not been provided documents with these Bates No. and must object until we review them. We have not been provided documents with these Bates No. and must object until we review them. We have not been provided documents with these Bates No. and must object until we review them. We have not been provided documents with these Bates No. and must object until we review them.

PL Trial Objection

Comments re Objections
09.28.06 - PL - This is Deposition Ex. PX009 which DF was advised of on PLs 08.09.06 Exhibit List 09.28.06 - PL - This is Deposition Ex. PX016 which DF was advised of on PLs 08.09.06 Exhibit List 09.28.06 - PL - This is Deposition Ex. PX035 which DF was advised of on PLs 08.09.06 Exhibit List 09.28.06 - PL - This was provided to DF on 08.11.06 by letter from J. Ferrebee 09.28.06 - PL - This was produced to PL by DF informally pre-2004 09.28.06 - PL - This is a document produced by DF to PLs on 07.16.04 and re-produced by DF with a new bates no. in 2005, which new number PLs advised DF they could not use 09.28.06 - PL - This is Deposition Exhibit PX069 which DF was advised of on PLs 08.09.06 Exhibit List 09/28/06 - PL - This is Deposition Exhibit PX070 which DF was advised of on PLs 08.09.06 Exhibit List 09/28/06 - DF Withdrew 09/28/06 - PL - This is Deposition Exhibit PX072 which DF was advised of on PLS 08.09.16 Exhibit List. It is a DF exhibit. DF withdrew it on 9.28.06 09/28/06 - DF Withdrew 09/28/06 - PL - This is Deposition Exhibit PX073 which DF was advised of on 08.09.06. It is a DF exhibit. DF withdrew it on 9.28.06 09.28.06 - PL - This was a PL Exhibit to their Opposition to Motion for Summary Judgment, which DF was advised of on 08.09.06 09.28.06 - PL - This was provided to DF on 08.11.06 by letter from J. Ferrebee

2

JX067

PT560 PT574 Withdrawn

None

3

JX068

None

4

JX072

PT584

None

5

JX074

PT587

None

We have not been provided documents with these Bates No. and must object until we review them. None

6

JX096

PT670

None

Bates No. We have a 5/28/96 ATAC study (DX192) but we don't have this in our database Bates No. - (don't have a presentation with these bates nos); Relevance Bates No. (don't have a document with these bates nos); Hearsay; Relevance

7

JX128

PT824

None

8

JX130

PT826

None

9

JX131

PX072 Withdrawn

PT827

None

Bates No. (don't have a document with these bates nos); Hearsay; Relevance

None

10 JX132

PX073 Withdrawn

PT828

None

Bates No. (don't have a document with these bates nos); Hearsay; Relevance Bates No. (don't have a document with these bates nos); Hearsay; Relevance Bates No. (don't have a document with these bates nos); Hearsay; Relevance

None

11 JX133 12 JX134

PT830 PT831

None None

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EXHIBIT A

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PLAINTIFFS' COMMENTS REGARDING DEFENDANT'S 09.27.06 AND 10.02.06 "NOT PROVIDED" OBJECTIONS TO JOINT EXHIBITS

Joint Exhibit No.
13 JX135

DF Trial Exh No.

DF PL Trial 08.16.06 Exhibit No Objection
PT832 None

DF 09.27.06 and 10.02.06 Objection
Appears to be same as JX050. Same objection, plus Bates No.; Hearsay; 10.02.06 Lack of Foundation

PL Trial Objection

Comments re Objections
09.28.06 - PL - This is included in the AR documents which DF has

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EXHIBIT A

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PLAINTIFFS' REPORT OF DEFENDANT'S ADDITIONAL OBJECTIONS TO JOINT EXHIBITS FROM 09.27.06 TO 10.02.06

Joint Exhibit No
1 JX018 2 JX025 3 JX026 4 JX027 5 JX028 6 JX045

PL Trial DF Trial Exhibit Exh No. No
DX185

DF 08.16.06 Objection

DF 09.27.06 Objection

DF 10.02.06 Objection
Hearsay; Rule of Completeness

PL Trial Objection
None

No Objection as this is a DF will not object to this being a JX if PLs will agree Defendant exhibit to make DX 233-236 as JXs as well DF will not object to this being a JX if PLs will agree No Objection as this is a that the e-mails concerning the profile revisions on Defendant exhibit DFs exhibit list are JXs DF will not object to his being a JX if PLs will agree No Objection as this is a that the e-mails concerning the profile revisions on Defendant exhibit DFs exhibit list are JXs DF will not object to his being a JX if PLs will agree No Objection as this is a that the e-mails concerning the profile revisions on Defendant exhibit DFs exhibit list are JXs DF will not object to his being a JX if PLs will agree No Objection as this is a that the e-mails concerning the profile revisions on Defendant exhibit DFs exhibit list are JXs No Objection as this is a DF will not object to this being a JX if PLs will agree Defendant exhibit to make DX 233-236 as JXs as well

DX288

Hearsay; Rule of Completeness

None

DX289

Hearsay; Rule of Completeness

None

DX312

Hearsay; Rule of Completeness

None

DX356 DX561

Hearsay; Rule of Completeness Hearsay

None None

7 JX049

PX175

DF will not object to historical noise studies from the No Objection as this is a 1970s through the 1980s as JXs, as long as all of the Defendant exhibit NAS Oceana noise studies from this period are JXs Hearsay Rule of Completeness - We will agree that the entire ATAC study be a joint exhibit, but we will not agree to PLs only selecting excerpts as joint exhibits Hearsay Rule of Completeness - We will agree that the entire WR 97-10 as a joint exhibit; we will not agree to PLs only selecting excerpts as joint exhibits Hearsay

None

8 JX057

PT521

None

9 JX061

PT539

None

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EXHIBIT C

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PLAINTIFFS' REPORT OF DEFENDANT'S ADDITIONAL OBJECTIONS TO JOINT EXHIBITS FROM 09.27.06 TO 10.02.06

Joint Exhibit No

PL Trial DF Trial Exhibit Exh No. No

DF 08.16.06 Objection

DF 09.27.06 Objection

DF 10.02.06 Objection

PL Trial Objection

10 JX062 11 JX066

PT548

None

We will agree that the entire F/A-18C/D EIS (including appendices and supporting noise study and ATAC study), entire F/A-18 E/F EIS (including appendices and supporting noise study and ATAC study) and the entire Draft F/A-18 E/F EIS (including appendices) be joint exhibits, but we will not agree to PLs only selecting excerpts or one EIS versus another as joint exhibits. These are all public documents that will be discussed extensively at trial, and should be treated the same way in terms of evidentiary objections Hearsay; Changed Wording Rule of Completeness - We will agree that the entire WR 97-10 as a JX; we will not agree to PLs only selecting excerpts as joint exhibits Hearsay; Changed Wording This is a conglomerate of separate documents. We will agree that the portions concerning FCLP counts in 2000 are a JX. The remaining documents we object as hearsay

None

PT558

None

12 JX078

PX013

PT608

None

Hearsay

None

13 JX079

PT609

None

DF will not object to historical noise studies (or drafts) from the 1970s through the 1980s as JXs, as long as all of the NAS Oceana noise studies from this period are JXs Hearsay We will not object to this document being part of a larger JX. Specifically, we propose using DX193 as JX082 because it has all the fact sheets from 19752000 (OCe018813-816) not just 1985-1996 Rule of Completeness - We will not object to the entire study, but will object to excerpts

14 JX082 15 JX105

PT614 PT740

None None

Hearsay Hearsay

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PLAINTIFFS' REPORT OF DEFENDANT'S ADDITIONAL OBJECTIONS TO JOINT EXHIBITS FROM 09.27.06 TO 10.02.06

Joint Exhibit No

PL Trial DF Trial Exhibit Exh No. No

DF 08.16.06 Objection

DF 09.27.06 Objection

DF 10.02.06 Objection

PL Trial Objection

16 JX113 17 JX135

PT802 PT832

None None

We will agree that the entire F/A-18C/D EIS (including appendices and supporting noise study and ATAC study), entire F/A-18 E/F EIS (including appendices and supporting noise study and ATAC study) and the entire Draft F/A-18 E/F EIS (including appendices) be joint exhibits, but we will not agree to PLs only selecting excerpts or one EIS versus another as joint exhibits. These are all public documents that will be discussed extensively at trial, and should be treated the same way in terms of evidentiary objections Hearsay; Changed Wording Appears to be same as JX050. Same objection, plus Bates No Hearsay; Lack of Foundation

18 JX140

PT860

None

We will agree that the entire F/A-18C/D EIS (including appendices and supporting noise study and ATAC study), entire F/A-18 E/F EIS (including appendices and supporting noise study and ATAC study) and the entire Draft F/A-18 E/F EIS (including appendices) be joint exhibits, but we will not agree to PLs only selecting excerpts or one EIS versus another as joint exhibits. These are all public documents that will be discussed extensively at trial, and should be treated the same way in terms of evidentiary objections Hearsay; Changed Wording

19 JX144

PT867

None

We will agree that the entire F/A-18C/D EIS (including appendices and supporting noise study and ATAC study), entire F/A-18 E/F EIS (including appendices and supporting noise study and ATAC study) and the entire Draft F/A-18 E/F EIS (including appendices) be joint exhibits, but we will not agree to PLs only selecting excerpts or one EIS versus another as joint exhibits. These are all public documents that will be discussed extensively at trial, and should be treated the same way in terms of evidentiary objections Hearsay

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PLAINTIFFS' REPORT OF DEFENDANT'S ADDITIONAL OBJECTIONS TO JOINT EXHIBITS FROM 09.27.06 TO 10.02.06

Joint Exhibit No

PL Trial DF Trial Exhibit Exh No. No

DF 08.16.06 Objection

DF 09.27.06 Objection

DF 10.02.06 Objection

PL Trial Objection

20 JX145

PT868

None

We will agree that the entire F/A-18C/D EIS (including appendices and supporting noise study and ATAC study), entire F/A-18 E/F EIS (including appendices and supporting noise study and ATAC study) and the entire Draft F/A-18 E/F EIS (including appendices) be joint exhibits, but we will not agree to PLs only selecting excerpts or one EIS versus another as joint exhibits. These are all public documents that will be discussed extensively at trial, and should be treated the same way in terms of evidentiary objections Hearsay; Changed Wording

21 JX146

PT869

None

We will agree that the entire F/A-18C/D EIS (including appendices and supporting noise study and ATAC study), entire F/A-18 E/F EIS (including appendices and supporting noise study and ATAC study) and the entire Draft F/A-18 E/F EIS (including appendices) be joint exhibits, but we will not agree to PLs only selecting excerpts or one EIS versus another as joint exhibits. These are all public documents that will be discussed extensively at trial, and should be treated the same way in terms of evidentiary objections

DELETED FROM 09.27.06 LIST OF DF OBJECTIONS TO JOINT EXHIBIT LIST and NOT INCLUDED ON DF'S JOINT EXHIBIT LIST OF 10.02.06

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EXHIBIT C